Cronise

delivered the opinion -of the Court.

*122 This action was commenced under the Statute concerning Forcible Entries and Unlawful Detainers. The suit was instituted before the Recorder of Sacramento City, and afterwards transferred to a Justice of the Peace.

* The grounds of error assigned, are, first, the want [122] of jurisdiction of the Justice; second, that the complaint does not contain any allegation of the plaintiff’s possession.

We decided, in the case of Burnett et al. v. Madden, that the Recorder of Sacramento City had no jurisdiction in cases of this character. Under that decision, there can be no doubt, if he had proceeded to hear and determine the cause, the judgment would have been a nullity. But the case was transferred to a magistrate having jurisdiction, by consent of the parties. ■

The appearance of the defendant, and consent fixing the time of trial, were a waiver of his right to be brought in by complaint and summons.

The complaint alleges that the premises “are unlawfully withheld from the plaintiff.” The Statute does not require an allegation of possession. The allegation may be somewhat defective, and too general. It is not the policy of the law, however,…